In the first half of 2022, manufacturers have been as busy as ever navigating recalled products and fielding the class action lawsuit that often (but do not always) follow.

CPAP Litigation Finds New Defendant 

For the last year, Philips Respironics (“Philips”) has been inundated with lawsuits  brought by consumers and medical device suppliers, over its CPAP and BiPAP breathing machines. And in more recent months, SoClean, a manufacturer of sanitation machines specifically designed to work with CPAP and BiPAP sleep apnea equipment, has been defending itself against a lawsuit of its own.

In October, a Missouri resident filed Jenkins v. SoClean, Inc., 2:22-cv-00241-JFC (W.D. Mo., filed Oct 4, 2021), a putative class action lawsuit against SoClean, asserting various tort and warranty claims on behalf of himself and a class of Mississippi citizens who purchased or used SoClean devices to clean and sanitize their CPAP, BiPAP, or Mechanical Ventilation machines. In his Complaint, the plaintiff alleges that these SoClean machines use harmful levels of ozone gas during the cleaning process. Although originally filed in a federal district court in Missouri, the Judicial Panel on Multidistrict Litigation (JPML) transferred the case on February 2, 2022, to the U.S. District Court for the Western District of Pennsylvania, so it could be heard by Judge Joy Flowers Conti, the same District Court Judge who is currently presiding over the Philips CPAP MDL (In re Philips Recalled CPAP, Bi-Level PAP, and Mechanical Ventilator Prods. Liab. Litig.) in the Western District of Pennsylvania.

Within a week of the consumer class action, SoClean released a public statement accusing Philips of blaming SoClean following the recall of Philips’ products. And it also filed a lawsuit of its own against Philips—SoClean, Inc., v. Philips, 1:21-cv-11662 (D Mass., filed Oct. 12, 2021)—alleging that Philips misled the public and placed blame on SoClean to divert attention away from the design flaws that led to the voluntary product recall of CPAP machines, BiPAP machines, and ventilators. SoClean asserts claims under the Lanham Act and Massachusetts statute, M.G.L. Chapter 93A, and for commercial disparagement, tortious interference with business relationships, and unfair competition. And in its Complaint, SoClean claims that it suffered more than $200 million in damages.

Class Actions Over Benzene in Recalled Consumer Products

Recently, several brands of personal care products have come under fire for the presence of benzene, a carcinogen with the potential to cause serious health effects after long-term exposure. The current wave of class action litigation started last year with consumer class action lawsuits against Johnson and Johnson (“J&J”), alleging that its Neutrogena and Aveeno-branded Aerosol Sunscreens contained harmful levels of benzene. J&J had recalled these products after Valisure LLC, an independent laboratory, publicly announced test results revealing the presence of benzene in a number of over-the-counter sunscreen products. In October 2021, these lawsuits against J&J—which asserted warranty, fraud, advertising, and consumer protection act claims—were consolidated before Judge Raag Singhal in the U.S. District Court for the Southern District of Florida. On March 28, 2022, Judge Singhal preliminarily approved a class action settlement in the consolidated action, In re: Johnson & Johnson Aerosol Sunscreen Marketing, Sales Practices and Products Liability Litigation), MDL 3015 (S.D. Fla)., and set a final approval hearing for August 12, 2022. The Settlement would include full refunds on recalled products, vouchers toward future product purchases, and new testing procedures, and it covers all U.S. consumers who have purchased one or more of the affected products since May 26, 2015.

J&J competitor, Proctor & Gamble (“P&G”) is also facing consumer class actions asserting various tort and warranty claims and alleging that P&G mislead them on the alleged presence of benzene in P&G’s now-recalled Secret and Old Spice antiperspirant and deodorant spray products, and its Pantene, Herbal Essense, Aussie, Old Spice, Waterless, and Hair Food aerosol dry conditioners and dry shampoos. In April, these cases were consolidated before Judge Michael H. Watson in the U.S. District Court for the Southern District of Ohio, and earlier this month, the parties to In re Procter & Gamble Aerosol Products Marketing & Sales Practices Litigation, MDL No. 3025, announced that they had reached an agreement in principle to settle all of the complaints in the MDL. Although the details of the settlement are not public, the parties are expected to seek preliminary approval from Judge Watson on or before June 2, 2022, and it could very well resemble the recent settlement involving J&J.

Recently, two New York consumers also filed Winans Jr. v. S.C. Johnson & Son, Inc., et al., Case No. 2:22-cv-00451 (E.D.N.Y, filed Jan. 26, 2022) and Santos v. Blistex Inc., Case No. 1:22-cv-00806 (S.D.N.Y, filed Jan 31, 2022), asserting various tort and warranty claims against S.C. Johnson & Son and Blistex, respectively, and alleging the existence of and failure to disclose unsafe levels of benzene in personal care spray products. The case against Blistex has already been voluntarily dismissed, however, these cases underscore that manufacturers need to look closely at the benzene content of their products (and the testing in place to monitor the presence of potential carcinogens), whether or not they find themselves on the radar of independent testing laboratories like Valisure.

Effectiveness of At-Home COVID-19 Tests and Recalls Face Scrutiny

As demand continues for easily accessible COVID-19 testing with immediate results, so do recalls of COVID-19 Rapid Antigen tests. This includes the DiaTrust COVID-19 Rapid Tests manufactured by Celltrion USA, which were recalled February due to a high rate of false positives, and COVID-19 rapid, at-home tests by SD Biosensor, LuSys Laboratories, and SML Distribution, which were not properly authorized, cleared, or approved by the FDA for marketing or distribution in the U.S. Although these companies have yet to see any litigation related to these recalls, consumer-facing putative class actions have already been filed against E25Bio and Ellume, respectively, challenging the effectiveness of these tests and/or the handling of these recalls.  As new strains of COVID-19 emerge and the need for at-home COVID-19 testing remains high, new class action lawsuits are likely to follow.